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19-1204

d
IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

FRANK HEINDEL; PHIL P. LEVENTIS,
Plaintiffs-Appellants,

—v.—

M ARCI A NDINO , Executive Director of the South Carolina State Election
Commission, in her official capacity; JOHN WELLS, Chair of the South Carolina
State Election Commission, in his official capacity; C LIFFORD J. E LDER ,
AMANDA LOVEDAY, SCOTT MOSELY, Members of the South Carolina State
Election Commission, in their official capacity,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA AT COLUMBIA

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

LAURENCE M. SCHWARTZTOL
PROTECT DEMOCRACY PROJECT, INC.
125 Walnut Street, Suite 202
Watertown, Massachusetts 02472
(202) 945-2092
JESSICA A. MARSDEN
PROTECT DEMOCRACY PROJECT, INC.
510 Meadowmont Village Circle,
No. 328
Chapel Hill, North Carolina 27517
(202) 672-4812

DAVID S. FRANKEL
HARRY P. MORGENTHAU
KRAMER LEVIN NAFTALIS
& FRANKEL LLP
1177 Avenue of the Americas
New York, New York 10036
(212) 715-9100
JAMILA G. BENKATO
PROTECT DEMOCRACY PROJECT, INC.
2020 Pennsylvania Avenue, NW,
No. 163
Washington, DC 20006
(202) 579-4582

Attorneys for Plaintiffs-Appellants

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TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
I.

Defendants Misstate the Relevant Legal Standards for Article III Standing......2
A. Defendants Explicitly Collapse the “Substantial Risk” Standard into the
Distinct “Certainly Impending” Standard and Cannot Account for Case
Law Involving Uncertain but Substantial Risk of Injury ................................3
B. Defendants Equate Widespread Injuries with Generalized Grievances ........11
1. A Widely Shared Injury to Voting Rights is Not
a Generalized Grievance ............................................................................11
2. Defendants Challenge a “Reasonable Beliefs” Theory of Standing that
Plaintiffs Do Not Assert .............................................................................13
C. Defendants Incorrectly Assert that the Potential Role of “Third Party”
Hackers Defeats Standing ..............................................................................14

II. Defendants Urge an Improper Standard for Evaluating the Allegations in
the Complaint ....................................................................................................16
A. Defendants Ask the Court to Ignore Key Allegations in the Complaint
and Instead Credit Factual Assertions Outside the Complaint ......................16
B. Defendants’ Description of an “Attenuated Chain of Possibilities” Relies
on the Wrong Legal Standard and Misstates Plaintiffs’ Allegations ............23
CONCLUSION ........................................................................................................25

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TABLE OF AUTHORITIES
Page(s)
Cases
Arcia v. Fla. Sec’y of State,
772 F.3d 1335 (11th Cir. 2014) ..................................................................6 n.1, 7
Bishop v. Bartlett,
575 F.3d 419 (4th Cir. 2009) .............................................................................. 11
Black v. McGuffage,
209 F. Supp. 2d 889 (N.D. Ill. 2002) ................................................................ 5, 7
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ...................................................................................... 10, 24
Curling v. Kemp,
334 F. Supp. 3d 1303 (N.D. Ga. 2018) ...................................... 8, 9 & n.2, 15, 23
Curling v. Raffensperger,
No. 1:17-cv-2989 (N.D. Ga. May 21, 2019), ECF No. 375 ...............9, 14, 20, 24
Federal Election Commission v. Akins,
524 U.S. 11 (1998) ........................................................................................ 12, 13
Gill v. Whitford,
138 S.Ct. 1916 (2018) ................................................................................... 13 n.3
King v. Rubenstein,
825 F.3d 206 (4th Cir. 2016) .............................................................................. 17
Knox v. Serv. Emps. Int’l Union, Local 1000,
567 U.S. 298 (2012) ............................................................................................ 23
League of Women Voters of N.C. v. North Carolina,
769 F.3d 224 (4th Cir. 2014) ................................................................................ 4
League of Women Voters of Ohio v. Brunner,
548 F.3d 463 (6th Cir. 2008) ................................................................................ 5
Libertarian Party of Va. v. Judd,
718 F.3d 308 (4th Cir. 2013) .............................................................................. 15
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N.C. State Conference of NAACP v. N.C. State Bd. Of Elections,
283 F. Supp. 3d 393 (M.D.N.C. 2017) .........................................4, 5, 6 n.1, 8, 15
Reynolds v. Sims,
377 U.S. 533 (1964) ............................................................................................ 11
Stewart v. Blackwell,
444 F.3d 843 (6th Cir. 2006) ......................................................... 4, 5, 6 & n.1, 7
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) .............................................................................................. 3
United States v. Richardson,
418 U.S. 166 (1974) ............................................................................................ 12
Wesberry v. Sanders,
376 U.S. 1 (1964) .................................................................................................. 4
Wikimedia Found. v. NSA,
857 F.3d 193 (4th Cir. 2017) ........................................................................ 10, 11
Statutes
S.C. Code §§ 7-13-1620........................................................................................... 14
S.C. Code §§ 7-13-1655........................................................................................... 14
Other Authorities
State Election Commission, Fiscal Year 2015-2016 Accountability
Report, https://www.scstatehouse.gov/reports/ aar2016/D500.pdf
(last accessed May 27, 2019) ........................................................................ 23 n.6
South Carolina State Election Commission, Voting System
Replacement News and Information, available at
https://www.scvotes.org/voting-system-replacement-news-andinformation (last accessed May 27, 2019) ....................................................23 n.6

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INTRODUCTION
Defendants’ response brief makes two critical errors of law: it misstates the
legal standard for determining whether an injury is imminent for purposes of
standing, and it asks the court to ignore well pled allegations and instead credit
factual assertions presented for the first time in their appellate brief.
First, Defendants misstate the legal standard for an imminent injury sufficient
to establish standing at the pleading stage. The Supreme Court has made clear that
there are two potential routes to establishing the imminence of a prospective harm:
a future injury may be (1) certain but not yet manifest (“certainly impending”), or
(2) uncertain but sufficiently likely to materialize (“substantial risk”). Defendants
erase the “substantial risk” route, wrongly claiming that plaintiffs must show a
certainly impending future injury. They do this by devoting the bulk of their
substantive argument to the contours of the “certainly impending” standard, and then
by arguing that “satisfying the ‘substantial risk’ standard is impossible when a
plaintiff’s alleged harm is not ‘certainly impending.’” Defs.’ Br. 30. Their argument
conflicts with controlling legal precedent. The Supreme Court has made clear that
these are two distinct standards, and both this Circuit and other lower courts have
repeatedly applied this precedent, finding plaintiffs to have standing in cases
involving a substantial, but uncertain, risk of future injury.

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Second, Defendants ask this Court to ignore well pled allegations and
disregard the plausible inferences following from those allegations, and instead to
resolve a motion to dismiss based on outside-the-complaint factual assertions raised
for the first time in their appellate brief. At the same time, Defendants brush aside
detailed factual allegations illustrating the profound vulnerabilities of the voting
system challenged in this litigation. Those allegations describe the prior successful
efforts of researchers to breach that system, the numerous interlocking security
deficiencies offering pathways to attack, the structural incapacity of the system to
reliably detect or remedy breaches, the years of voting machine failure leading to
lost votes, and the repeated warnings by national security leaders that the kind of
system used in South Carolina is a prominent target of sophisticated attackers. When
these detailed factual allegations are evaluated under the correct legal standard,
Plaintiffs easily carry their pleading burden with respect to standing.
I.

Defendants Misstate the Relevant Legal Standards for Article III
Standing
Defendants advance three overarching legal positions that are incorrect. First,

Defendants erroneously suggest that standing requires a certainty of future harm.
That proposition is flatly contradicted by Supreme Court precedent, and
irreconcilable with numerous cases. Voting rights cases in particular illustrate the
principle that plaintiffs facing a substantial risk of not having their votes counted
have standing to sue.

Second, Defendants advance a theory of “generalized
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grievances” that depends on the notion that multiplying an injury robs it of its
concreteness. This, again, is inconsistent with longstanding case law. Third,
Defendants assert that Plaintiffs’ injury is not caused by them, and cannot be
remedied by this Court, because if South Carolina’s voting system fails to count
Plaintiffs’ votes as the result of a hack it will involve a “third party” hacker. This
contention is inconsistent with Defendants’ exclusive authority to certify voting
systems that are sufficiently reliable and secure (and to de-certify them when they
are not).
A.

Defendants Explicitly Collapse the “Substantial Risk” Standard
into the Distinct “Certainly Impending” Standard and Cannot
Account for Case Law Involving Uncertain but Substantial Risk
of Injury

The Supreme Court has held that plaintiffs faced with a risk of future harm
can come to federal courts for relief when that injury is “‘certainly impending,’ or
there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014) (citing Clapper v. Amnesty Int’l USA, 568 U.S.
398, 414 n.5 (2013) (emphasis added)). Defendants acknowledge, as they must, that
a “‘substantial risk’ of future harm could suffice to show an imminent injury-infact.” Defs.’ Br. 29. But they then immediately erase the distinction between
“substantial risk” and “certainly impending” by proclaiming that “satisfying the
‘substantial risk’ standard is impossible when a plaintiff’s alleged harm is not
‘certainly impending.’” Id. at 30. See also id. at 42.
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The Supreme Court has made clear that prospective harm may be imminent
because it is certain to occur; alternatively, it may be imminent even where it is
uncertain to occur if a plaintiff faces a substantial risk that it will come to pass.
Driehaus, 573 U.S. at 158. Finding standing based on substantial (but uncertain)
risk of injury is especially well established—and especially vital—in the voting
rights context. When a voter faces a substantial risk of disenfranchisement, the
prospective harm is especially profound. Wesberry v. Sanders, 376 U.S. 1, 17 (1964)
(“No right is more precious in a free country than that of having a voice in the
election of those who make the laws under which, as good citizens, we must live.”).
At the same time, the nature of voting and elections means that it may never be
possible to know with certainty which voters suffer a harm—especially when the
harm is a failure to count secret ballots—and impossible to remedy after the fact.
See Stewart v. Blackwell, 444 F.3d 843, 855 (6th Cir. 2006), vac’d as moot following
vote for en banc review by 473 F.3d 692 (6th Cir. 2007) (finding standing where
“plaintiffs are unable to articulate which voter will be harmed in the future by
deficient equipment”); League of Women Voters of N.C. v. North Carolina, 769 F.3d
224, 230 (4th Cir. 2014) (preliminarily enjoining new election procedures based on
risk that some voters would be injured); N.C. State Conference of NAACP v. N.C.
State Bd. Of Elections, 283 F. Supp. 3d 393, 403–04 (M.D.N.C. 2017) (finding

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plaintiff established standing by demonstrating a “substantial risk” that he would be
unlawfully purged from voter rolls in future elections).
For those reasons, courts generally have found that voters have standing to
challenge election policies and procedures when they plausibly allege a substantial
risk of deprivation of their right to vote, even though there is no way to predict with
certainty that their specific votes will be affected. See Opening Br. 21–25. In light
of that case law, and as described at length in Plaintiffs’ opening brief, Plaintiffs
have alleged facts sufficient to plausibly establish a substantial risk that their votes
will go uncounted.
Defendants fail to distinguish the cases finding injury based on a substantial
risk of harm. First, Defendants contend that the standing analysis depends on
whether a plaintiff challenges “black-and-white government policies” rather than
“an inanimate object” such as a voting machine. Defs.’ Br. 32. This argument is
misguided. First, it is clear that a voter-plaintiff will have standing to challenge the
constitutionality of a deficient voting system, as numerous cases have established.
See, e.g., League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir.
2008); Stewart, 444 F.3d at 854; Black v. McGuffage, 209 F. Supp. 2d 889, 894–95
(N.D. Ill. 2002). Moreover, Plaintiffs are not challenging an “inanimate object” that
is somehow untethered to any “black-and-white government policy.” Rather, as the
Cause of Action in the Complaint states, they are they are challenging Defendants’
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“fail[ure] to approve and adopt a voting system that meets reasonable security
standards” despite having the statutory authority and duty to do so. See JA55 ¶¶
118–21. Those certification decisions, structured by South Carolina’s statutory
framework, certainly represent “black-and-white government policies.”
Defendants also attempt to distinguish the cases cited in Plaintiffs’ opening
brief illustrating that voters have standing to challenge election procedures when
they face a substantial risk of disenfranchisement. Defs.’ Br. 33–35.1 Those putative
distinctions miss the mark. For example, Defendants purport to distinguish several
of the cases cited in Plaintiffs’ brief on the ground that those cases involved past
harm. Yet none of those cases states that prior injury is a necessary component of
assessing future risk. Indeed, as Defendants acknowledge in a footnote, in one of
those cases, Stewart v. Blackwell, the court explicitly recognized that “standing does
not depend on any injury suffered in a previous election.” Defs.’ Br. 34 n.12 (citing
Stewart, 444 F.3d at 848, 855 [sic]). Defendants omit the end of the relevant
sentence, which states in full: “Furthermore, the plaintiffs’ standing does not depend
on any injury suffered in the previous election, but rather on the probability that their
votes will be miscounted in upcoming elections.” Stewart, 444 F.3d at 854. And
indeed, the core of Stewart’s standing analysis was the premise that “this Court and

1

Defendants purport to distinguish Arcia v. Fla. Sec’y of State, 772 F.3d 1335 (11th
Cir. 2014); Stewart, 444 F.3d 843; Black, 209 F. Supp. 2d 889; and N.C. State
Conference of NAACP, 283 F. Supp. 3d 393.
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others have recognized that voters can have standing based on an increased risk that
their votes will be improperly discounted.” Id.
Similarly, in Arcia v. Florida Secretary of State, voters challenging a policy
to purge voter rolls had standing to seek prospective relief. In a prior election the
plaintiffs had been wrongly identified as non-citizens, but not prevented from voting.
772 F.3d at 1341. That prior misidentification provided no certainty that they would
be wrongfully excluded in the future, and the court did not rely on it in evaluating
standing to challenge the upcoming election prospectively. Instead, the court held
that “probabilistic harm is enough” where the plaintiffs faced a “realistic probability
that they would be misidentified due to unintentional mistakes on the Secretary [of
State’s] data-matching process.” Id. So, too, in Black v. McGuffage, voters subject
to error-prone voting machines had standing to pursue their constitutional challenge,
because “probabilistic injury is enough” to confer standing in this context. 209 F.
Supp. 2d at 894–95. The court also noted the importance of that principle in
challenging a deficient voting system: “Because the voting process is anonymous, it
is impossible for any one voter to know with more certainty that their intended votes
were not counted.” Id. at 895. Imposing a certainty requirement would insulate
from review even “a policy under which every tenth ballot was systematically
discarded instead of counted.” Id. And in N.C. State Conference of NAACP, the
court held that a plaintiff challenging a policy for purging voter rolls had standing
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even though he had not been “purged from the rolls or prevented from voting”
because the policy gave rise to a “substantial risk of future harm.” 283 F. Supp. 3d
at 403–04.
Curling v. Kemp remains the case closest to this one, and Defendants cannot
distinguish it.

The Curling plaintiffs allege that their right to vote has been

compromised by a voting system consisting of DRE machines that have deep
security flaws and are not capable of being audited. See Curling v. Kemp, 334 F.
Supp. 3d 1303, 1308 (N.D. Ga. 2018). Defendants attempt to distinguish Curling
by stating that the court relied on “two dozen paragraphs in the [Curling] complaint
referencing specific instances of disenfranchisement to various plaintiffs.” Defs.’
Br. 34 (citing Curling, 334 F. Supp. 3d at 1315–16). This is misleading. The court’s
lengthy string cite is largely devoted to evidence from computer scientists stating
that Georgia’s voting system is insecure, has been successfully hacked by computer
researchers, and creates a substantial risk that the plaintiffs’ votes would not be
counted—precisely the type of facts that Plaintiffs here allege—as well as
declarations from plaintiffs who describe being forced to choose between the
insecure DRE machines and an absentee ballot system that suffers other deficiencies.
See Curling, 334 F. Supp. 3d at 1314–16. It does not identify voters who had
previously been disenfranchised because of a hack or malfunction of the state’s

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voting machines, the risk that their lawsuit sought prospectively to address. Id. at
1312–14.
Defendants also suggest that, in Curling, the plaintiffs could point to a past
“cyber-attack [that] had already occurred and was going to happen again.” Defs.’
Br. 23. This mischaracterizes the facts of Curling. A cybersecurity researcher
investigating an election website discovered that he could access sensitive voter
information, files from the election management database, and passwords for the
voting machines. 334 F. Supp. 3d at 1310. He had no intention of changing votes
or otherwise manipulating the voting system; to the contrary, he immediately
notified elections officials of the risk. Id. This intrusion was not evidence that a
previous attack had affected votes (much less the plaintiffs’ votes) and would likely
recur; rather, it was evidence that the system was deeply vulnerable to such an attack.
Similarly, in this case, Plaintiffs allege that security researchers had previously
exploited vulnerabilities to breach the iVotronic system, and that Defendants have
been on notice of those vulnerabilities since at least 2007, but have not remediated
the risks. See JA32–35 ¶¶ 57–66.2

2

On May 21, 2019, the Curling court denied in relevant part the defendants’ motion
to dismiss the case on the merits. See Curling v. Raffensperger, No. 1:17-cv-2989
(N.D. Ga. May 21, 2019) (“Curling II”), ECF No. 375 at 53. Though focused on the
merits, the court’s reasoning is instructive here. See id. at 43 (“Defendants’ motion
arguments completely ignore the reality faced by election officials across the country
underscored by Plaintiffs’ allegations that electronic voting systems are under
unceasing attack.”).
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Finally, Defendants suggest that there is a dispute over whether Clapper is
“applicable” to this case. Defs.’ Br. 16. They are mistaken. The dispute is not
whether Clapper applies, but how it applies. Insofar as Clapper explicates legal
principles, it supplies applicable authority. In applying those principles properly,
however, the fact that Clapper reviewed a summary judgment decision, not a motion
to dismiss, is important. While the requirements of Article III standing apply at any
stage of the case, how to analyze those requirements varies with the procedural
posture. See Wikimedia Found. v. NSA, 857 F.3d 193, 208 (4th Cir. 2017). In
Clapper, the Supreme Court’s analysis turned on an assessment of the concreteness
of the prospective harm those plaintiffs faced; based on that assessment, the Court
concluded that the claims were overly speculative. See Clapper, 568 U.S. at 410–
13; see also Opening Br. 31–34. Because it was reviewing a decision on their motion
for summary judgment, the Clapper plaintiffs were not entitled to the presumption
that well-pleaded facts were true and supported inferences in their favor. Wikimedia,
857 F.3d at 208. In this case, on the other hand, Plaintiffs are entitled to exactly
those presumptions. This is why it is imperative to not “blur[] the distinct burdens
for establishing standing at the motion-to-dismiss and summary-judgment stages of
litigation.” Id. at 212. “[W]hat may perhaps be speculative at summary judgment
can be plausible on a motion to dismiss.” Id.

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B.

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Defendants Equate Widespread Injuries with Generalized
Grievances

Defendants contend that Plaintiffs advance a “generalized grievance” because
(1) “it is not contested that [Plaintiffs’] injury is ‘widely shared,’” and (2) “the injury
here lacks concreteness” because, in Defendants’ telling, that injury is “based upon
[Plaintiffs’] reasonable beliefs.” Defs.’ Br. 12–14. Both of those premises are
unsound.
1.

A Widely Shared Injury to Voting Rights is Not a Generalized
Grievance

Defendants’ argument boils down to the notion that Plaintiffs’ asserted injury
lacks particularity because all in-person South Carolina voters face the same risk of
disenfranchisement.

This Court has already rejected the argument that the

deprivation of the right to vote is necessarily a “generalized grievance” when many
or all voters are injured in the same way. See Bishop v. Bartlett, 575 F.3d 419, 424–
25 (4th Cir. 2009). The fallacy in Defendants’ argument is that it turns entirely on
multiplication. After all, there can be no question that an individual’s interest in her
vote being counted accurately is a concrete, particularized injury. See, e.g., Reynolds
v. Sims, 377 U.S. 533, 561 (1964) (stating that the right to vote is “individual and
personal in nature”). Defendants ask this Court to hold that such concreteness melts
away as the number of voters facing similar injuries multiplies. Such a rule would
be a strange one. It is therefore not surprising that the Supreme Court in Federal

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Election Commission v. Akins, 524 U.S. 11, 24 (1998), explained that a “particularly
obvious” situation in which a widely shared injury remains concrete is “where large
numbers of voters suffer interference with voting rights conferred by law.”
Defendants place heavy weight on United States v. Richardson, see Defs.’ Br.
11 & n.2, 14, but that case does not help them. In Richardson, the plaintiff sought
to force the government to disclose information about CIA spending. 418 U.S. 166,
168 (1974). He asserted that the Appropriations Clause of the Constitution required
disclosure of the CIA’s expenses. Id. The Supreme Court rejected this claim. Id.
at 179–80. Understandably so: the Appropriations Clause does not purport to create
an individual right to information about government expenditures. Id. at 178 n.11.
Richardson stands for nothing more than the proposition that litigation may not serve
as a forum for resolving mere policy disputes. It offers no insight on a case, like this
one, where a plaintiff alleges deprivation of the right to vote. “The fact that the
Court in Richardson focused upon taxpayer standing, not voter standing, places that
case at still a greater distance from the case before [this Court].” Akins, 524 U.S. at
22 (internal citations omitted).3

Defendants also invoke Gill v. Whitford, 138 S.Ct. 1916 (2018). Defs.’ Br. 9–10.
In Gill, a partisan gerrymandering case, the Supreme Court held that a voter (1) who
did not live in a gerrymandered district and (2) whose district would not be affected
by a redrawn map, did not have standing to challenge the way districts were drawn
across the state. 138 S.Ct. at 1933. In other words, the allegedly unlawful maps had
no direct bearing on how the plaintiffs’ votes would be weighted. It was for that
reason that the Court concluded that the challengers “assert[ed] only a generalized
3

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2.

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Defendants Challenge a “Reasonable Beliefs” Theory of
Standing that Plaintiffs Do Not Assert

Several times in their brief, Defendants take aim at a strawman: the
proposition that Plaintiffs’ theory of standing depends on their “reasonable beliefs”
about the risks associated with South Carolina’s voting system. See Defs.’ Br. 5–8,
14. But Plaintiffs have never claimed that their beliefs give rise to standing. To the
contrary, Plaintiffs have repeatedly stated that their reasonable beliefs are not the
grounds upon which they base their standing to sue. See, e.g., JA668, Hearing Tr.
(Jan. 15, 2019) (“The injury is not rooted in Plaintiffs’ reasonable beliefs about the
system. The injury is rooted in the objective vulnerabilities and susceptibility to
failure inherent in that system”). Plaintiffs’ actual basis for standing is that the
unremedied vulnerabilities to hacking and machine failure, the inability to
meaningfully audit voting machines, and the heightened threat environment
currently facing South Carolina’s voting sytem—all taken together—create a
substantial risk that Plaintiffs’ right to cast an effective ballot will be lost. JA55–56
¶¶ 121–24.

grievance against governmental conduct of which he or she does not approve.” Id.
at 1930 (quoting United States v. Hays, 515 U.S. 737, 745 (1995)). To be analogous
to Gill, this case would need to involve a similar disjunction between plaintiff and
injury—for example, a challenge to South Carolina’s voting system brought by
North Carolina voters.
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C.

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Defendants Incorrectly Assert that the Potential Role of “Third
Party” Hackers Defeats Standing

Defendants claim that any impact on Plaintiffs’ voting rights resulting from a
cyberattack would be attributable to third-party hackers not before the Court, rather
than the Defendants named in this action, depriving Plaintiffs of Article III standing.
See Defs.’ Br. 44–46, 49–51. This argument misstates the law and misses the point.
As Plaintiffs have alleged, the SEC is tasked with the sole legal responsibility
to certify (and, when necessary, decertify) the voting system used in South Carolina
elections. See JA55 ¶¶ 118–22 (citing S.C. Code §§ 7-13-1620, 1655). Although
one of the flaws that Plaintiffs have alleged—the system’s vulnerability to
hacking—presumably requires third-party action for that hacking to occur, this does
not change the simple fact that the failure to ensure a reliable election system is the
result of Defendants’ conduct. See generally Br. Amici Curiae of 13 Election
Officials, ECF No. 26-1; Cf. Curling II, No. 1:17-cv-2989 (N.D. Ga. May 21, 2019),
ECF No. 375 at 41 (“Rapidly evolving cybertechnology changes and challenges
have altered the reality now facing electoral systems. . . .”). On Defendants’ theory,
a state election body could leave passwords entirely unprotected, or eliminate their
use entirely, or have the system connected to the internet with no security measures
whatsoever. Yet no matter how vulnerable the election system it maintains, or how
egregiously remiss in its duties a state election body was, a voter would lack standing
to state a claim, since the harm (the hacking) would always require the actions of a
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third party. And in any event, the risk that Plaintiffs will be disenfranchised is the
product of the combined risk of hacking and machine failure. See Opening Br. 8–9.
Third parties have nothing to do with the latter element of that risk.
Defendants’ theory conflicts with established law. As long as the challenged
election-related conduct “is at least in part responsible” for the plaintiff’s injury, the
fairly traceable prong of Article III standing is satisfied, “notwithstanding the
presence of another proximate cause.” Libertarian Party of Va. v. Judd, 718 F.3d
308, 315–16 (4th Cir. 2013) (citation omitted). For example, the court in N.C. State
Conference of NAACP found that plaintiffs had standing to sue the board of elections
members where the state’s election practice created a substantial risk that voters
would be purged from the rolls if and only if their registrations were to face a
challenge at the hands of third-party. 283 F. Supp. at 403–04. And the court in
Curling rejected precisely the argument advanced here by Defendants. In particular,
it rejected the argument “that any injury would be traced to illegal hacking into the
DREs, not the use of the DREs themselves,” holding that “[a]t the motion to dismiss
stage, these allegations plausibly show causal connection, even if indirectly, between
Defendants’ continued use of unsecure DREs and the injury to Plaintiffs’
constitutional rights.” 334 F. Supp. 3d at 1317.
Finally, on redressability, Defendants argue that “even if the Court orders a
new voting system be procured . . . it is still speculative that any order from the Court
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would diminish the threat of hacking or the risk of voting machine malfunction.”
See Defs.’ Br. 50. This is incorrect. The District Court could issue an order that
required the Defendants to adopt a voting system that is more secure than the
iVotronic, and that uses paper ballots. Such a court order would serve to provide a
remedy for Plaintiffs’ constitutional injury.4
II.

Defendants Urge an Improper Standard for Evaluating the Allegations
in the Complaint
A.

Defendants Ask the Court to Ignore Key Allegations in the
Complaint and Instead Credit Factual Assertions Outside the
Complaint

Defendants have not contested the plausibility of Plaintiffs’ detailed factual
allegations, which depict the alarming deficiencies in the voting system that

4

Defendants essentially conceded this point in the lower court. While the motion to
dismiss was pending, they sought to have the case dismissed as moot based on the
issuance of the SEC’s recent Request for Proposals (“RFP”). They argued that the
procurement of a voting system that “leaves a paper trail and will be implemented
in time for the 2020 presidential primaries” and that does “not utilize the previously
used voting machines referenced in Plaintiffs’ complaint” would moot Plaintiffs’
claims. See Defs.’ Suppl. Mem. in Supp. of Defs.’ Mot. Summ. J., No. 3:18-cv01887-JMC, ECF No. 43 (Jan. 4, 2019) at 3–4. Their mootness argument was wrong,
because simply initiating an RFP that might one day result in a new voting system
could not meet the “stringent” mootness standard of making it “absolutely clear that
the allegedly wrongful behavior could not reasonably be expected to recur.” Pls.’
Mem. in Response to Defs.’ Supp. Mem., No. 3:18-cv-0188 7-JMC ECF No. 45 (Jan.
11, 2019) at 2 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000)). While merely issuing the RFP guaranteed no actual
change, its elements mirrors Plaintiffs’ prayer for relief. See JA57. In other words,
the parties appear to agree that such changes would remedy Plaintiffs’ injury if
actually implemented, as a remedial order would require.
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Defendants maintain.

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Instead, Defendants rely heavily on their own factual

assertions, which are outside the four corners of the Complaint and therefore entirely
improper at this stage. See, e.g., King v. Rubenstein, 825 F.3d 206, 214 (4th Cir.
2016).
The Complaint explains in great detail the substantial risk posed by the
iVotronic voting system. Multiple security researchers have successfully hacked the
iVotronic machine, revealing flaws so severe that election security experts
commissioned by the Ohio Secretary of State concluded that the iVotronic could not
“guarantee a trustworthy election.” JA26 ¶ 40. Researchers at Florida State
University came to a similar conclusion, testing the iVotronic machines and finding
that a skilled hacker could take “complete control” of one during an election. JA30–
32 ¶¶ 54–56.

In addition to this severe hacking risk, the iVotronic has a

demonstrated record of machine malfunction. Among other things, the iVotronic
system was used in a Florida election in which 18,000 votes were permanently lost.
JA30 ¶ 54. And that risk grows more acute as the “dinosaur” that is South Carolina’s
voting system ages and replacement parts become scarce. JA33 ¶ 61, JA37 ¶ 72.
Finally, these substantial risks of both malicious interference and machine failure
are exacerbated by the Defendants’ inability to conduct a real audit. As described
in the Complaint, to provide a meaningful safeguard against hacking or failure, an
audit process must, inter alia, provide a software-independent basis for confirming
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that the tabulated results match the expression of voter intent recorded on ballots.
JA42 ¶¶ 84–86. The process that Defendants refer to as an “audit” fails to do this,
and instead merely checks that the various digital counts are consistent. JA43 ¶ 90.
In contrast to a meaningful audit, the procedure used by Defendants is incapable of
detecting or remediating lost or manipulated votes. See Opening Br. 10.
Defendants fail to refute the notion that these allegations, in combination,
represent a substantial risk that Plaintiffs votes will go uncounted. For example,
they offer two responses to the conclusions of the Ohio Secretary of State’s
“EVEREST” Report as detailed in the Complaint: first, that it “addresses only the
security of the iVotronic voting machines as they stood in 2007,” and second, that
the purpose of the Report “was to assess the security of electronic voting systems
used in Ohio.” Defs.’ Br. 24. Neither argument undermines the plausibility of
Plaintiffs’ injuries.
First, the fact that the EVEREST Report was published in 2007 bolsters, rather
than diminishes, the plausibility of Plaintiffs’ injuries. As alleged in the Complaint,
the iVotronic system that in 2007 suffered from massive vulnerabilities was the same
system deployed in South Carolina between 2004 and 2006. JA21 ¶ 23, JA30 ¶ 53.
The Complaint acknowledges that the SEC has certified upgraded software since
then. JA23 ¶ 31. But it goes on to allege in detail, that rather than the system’s
deficiencies having been remediated, new vulnerabilities were exposed as recently
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as 2017, JA34 ¶¶ 63-65, and network security failures occurred as recently as 2016,
JA37 ¶¶ 72-73. And indeed, the passage of time makes the existing risks more
pronounced, for several reasons: wear and tear exacerbate the risk of machine failure
or hacking, JA35–38 ¶¶ 67–68, 70–74, replacement parts become more difficult to
obtain, JA36–37 ¶¶ 69, 72, and of course, the intensity of the hacking threat has
increased substantially, JA44–54 ¶¶ 94–114. If Defendants are in possession of facts
showing that the security of the iVotronic system has meaningfully improved since
the findings published in 2007, they will have the opportunity to present those facts
in due course. But merely pointing out the passage of time since security researchers
exposed the deficiencies of their system does not advance their cause.
Second, noting that the EVEREST report was commissioned by Ohio’s
Secretary of State does nothing to diminish the plausibility of Plaintiffs’ injury. As
alleged in the Complaint, the EVEREST researchers in 2007 studied the same
system that the SEC had certified in South Carolina in 2004. JA21 ¶ 23, JA30 ¶ 53.
Defendants also seek to cast doubt on whether South Carolina is in fact “being
targeted” by foreign actors. See Defs.’ Br. 20, 22–27. In doing so, they overlook
detailed allegations that paperless DRE voting systems are especially susceptible to
manipulation, and therefore “are at the highest risk for security flaws.” JA51 ¶ 109.
See also Opening Br. 10–11. One of only five states that continue to exclusively
employ these vulnerable DRE systems, South Carolina is an obvious target for
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attack. Id. As former CIA director James Woolsey put it, “If I were a bad guy from
another country who wanted to disrupt the American system . . . I think I’d
concentrate on messing up the touch screen voting systems.” JA54 ¶ 114. See also
Curling II, No. 1:17-cv-2989, ECF No. 375 at 43 (“[N]ational security experts and
cybersecurity experts at the highest levels of our nation’s government and
institutions have weighed in on the specific issue of DRE systems in upcoming
elections and found them to be highly vulnerable to interference, particularly in the
absence of any paper ballot audit trail.”)
Moreover, as alleged in the Complaint, South Carolina’s vulnerability to such
an attack is compounded by the state’s history of serious problems related to both
network and physical security during elections. See Opening Br. 7–8, 28–29. These
kinds of vulnerabilities exacerbate the iVotronic system’s inherent flaws. Lapses in
physical security can make it even easier for an attacker to install malware on a
voting machine without being detected, which can then propagate throughout the
system. See Opening Br. 28. Similarly, security failures in the county-based Unity
system for administering the election and tabulating results can lead to widespread
alteration or loss of votes as malware travels from the county headquarters to the
individual machines with which it interacts. Id. at 28–29.5

Relying on extra-record evidence, Defendants claim that these network security
risks are irrelevant because the iVotronic system is “not connected to phone or
network lines.” Defs.’ Br. 25 n.7. As the Complaint makes clear, this argument is
5

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Defendants rely on outside-the-complaint factual assertions to claim that the
iVotronic voting system can in fact be audited and hacking detected. See Defs.’ Br.
37 & n.13. But even if Defendants’ extra-record factual assertions were properly
before the Court, Defendants say nothing that casts doubt on Plaintiffs’ allegations.
As explained in detail in the Complaint, the “election audit” currently conducted by
the SEC serves only to compare the vote totals recorded by one part of the system
with those tallied by another part of the system. JA43 ¶ 89. Of course, if the system
is compromised, such an audit would serve only to check the compromised system
against itself, which is no audit at all. JA43 ¶ 90; see also Br. of Nat’l Sec. Prof’ls
as Amici Curiae in Supp. of Neither Party, ECF No. 28-1 at 5, 16, 23–24.
Defendants also ignore allegations that illustrate the history of the iVotronic
system malfunctioning in ways that disenfranchise voters. They assert that “there is
no allegation that any voter was actually unable to vote or had their vote counted
inaccurately without remediation.” Defs.’ Br. 36. But the Complaint alleges
precisely that. In addition to describing a Florida election in which 18,000 votes
were permanently lost, JA30 ¶ 54, it cites examples of South Carolina races in which

specious. According to an April 27, 2018 report of the House Permanent Select
Committee on Intelligence, “[t]he fact that voting machines themselves, as well as
tabulation systems, are not directly connected to the internet does not offer adequate
security. Rather, it can create a false sense of security.” JA48 ¶ 104. And with
respect to iVotronic system in particular, the Complaint describes in detail how an
attack can be propagated virally through the system using fake or corrupted PEBs,
even if the system is never connected to the Internet. Opening Br. 6–7.
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the number of votes in the final tally was wildly inconsistent with the number of
votes actually cast. JA35 ¶ 68, JA69 ¶ 10.
Finally, Defendants’ reliance on the (outside-the-pleadings) RFP, see Defs.’
Br. 27–28, is not just improper on review of a motion to dismiss, but also irrelevant
on the substance (as discussed in Section II.B, infra) and misplaced under principles
of mootness law. A defendant cannot unilaterally undermine a plaintiff’s standing
by representing to the court that the defendant is in the process of taking some action
that may potentially eliminate the plaintiff’s injury, with the possibility that the
remedy may never occur. Such an approach would conflict with well-established
mootness doctrine, which holds that “[a] case becomes moot only when it is
impossible for a court to grant any effectual relief whatever to the prevailing party.”
Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307–08 (2012) (quoting
Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (internal quotations omitted))
(emphasis added). As Defendants tacitly acknowledge, that is not the case here.6

6

An RFP is just a first step, not a guarantee that any change will occur, much less a
timely change that will be sufficient to cure Plaintiffs’ injury. Highlighting the
entirely conditional nature of the RFP, the website to which Defendants cite states
only that it is the “goal” for the new system to be in place by the 2020 elections. See
South Carolina State Election Commission, Voting System Replacement News and
Information, available at https://www.scvotes.org/voting-system-replacementnews-and-information (last accessed May 27, 2019). This necessarily implies that
Defendants’ “goal” may not be achieved. Indeed, the record reflects just that
outcome having occurred in the past. The 2004 RFP that led to acquisition of the
current system was delayed due to vendor challenges, see JA488–89, and a 2016
RFP seeking proposals for an electronic voting system to replace the iVotronic was
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Notably, the court in Curling recently denied the motion to dismiss despite the fact
that the Georgia legislature had recently “approved funds for a new system of voting
technology,” noting that “[a]s the state has yet to choose which specific vendor’s
proposal will be selected and implemented, how the issue will play out in the context
of new voting technology remains an open question.” Curling II, No. 1:17-cv-2989,
ECF No. 375 at 52 n.38.
Should Defendants eventually moot this case by adopting a new,
constitutionally sufficient voting system through the RFP process, Plaintiffs would
welcome that result. But at this stage, implementation of a new system is pure
speculation. Such speculation has no bearing upon whether Plaintiffs have alleged
facts sufficient to establish their standing to sue.
B.

Defendants’ Description of an “Attenuated Chain of Possibilities”
Relies on the Wrong Legal Standard and Misstates Plaintiffs’
Allegations

Relying on Clapper, Defendants contend that Plaintiffs’ standing theory relies
on a “highly attenuated chain of possibilities.” Defs.’ Br. 18–29. The links in this
supposed chain are (i) that South Carolina is being targeted by hackers; (ii) that the
current iVotronic system will be used in 2020; (iii) that the system will be

withdrawn entirely, see State Election Commission, Fiscal Year 2015-2016
Accountability
Report
at
A-4-5,
https://www.scstatehouse.gov/reports/
aar2016/D500.pdf (last accessed May 27, 2019).
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successfully breached by hackers; (iv) that the breach will result in the alteration or
dilution of Plaintiffs’ votes; and (v) that the breach will go undetected and
unremediated by the SEC. Defs.’ Br. 20.
Defendants’ effort to approximate the chain of speculative possibilities
identified in Clapper collapses under scrutiny. For reasons explained in Plaintiffs’
opening brief, the analogy to Clapper is misplaced. See Opening Br. 32–34. Further,
at least two of Defendants’ supposed “possibilities” should, at the motion to dismiss
stage, be presumed true. Most glaringly, Defendants’ second supposed link in the
chain—the suggestion that the continued use of the iVotronic system in 2020 is a
mere “possibility”—turns the analysis on its head. Ignoring the well-pled allegation
that iVotronic system is currently the only in-person voting system approved for use
in the state, see JA21–23, Defendants seek to cast doubt on that by asserting untested
extra-record facts, Defs.’ Br. 21.

That is not how motions to dismiss work.

Similarly, Defendants’ fifth supposed speculative link—that the breach will go
undetected and unremediated by the SEC—is at this stage no question at all:
Plaintiffs have alleged that the iVotronic system lacks a paper ballot or other
independent record of votes cast, so once election results are altered within the
voting system by a breach or malfunction, there is no way to recover records that
reflect voters’ actual ballots. JA43 ¶ 90. Defendants do not get to contest that well
pled allegation with extra-record factual assertions. Moreover, with respect to link
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(i), Plaintiffs have alleged that Defendants’ maintenance of a paperless DRE
machine places the state at a particularly elevated risk of attack, JA48–49 ¶ 104,
JA51 ¶¶ 109–10, JA54 ¶ 114; and with respect to links (iii) and (iv), Plaintiffs have
alleged that the iVotronic system is particularly vulnerable to the types of attack that
could compromise an entire election, see, e.g., JA26–29 ¶¶ 40–50, JA30 ¶ 52.
CONCLUSION
For the foregoing reasons, the Court should reverse the District Court’s ruling
and remand the case for further proceedings.
May 28, 2019

Respectfully submitted,

/s/ Laurence M. Schwartztol
Laurence M. Schwartztol
PROTECT DEMOCRACY PROJECT,
INC.
125 Walnut Street, Suite 202
Watertown, Massachusetts 02472
Telephone: 202.945.2092
Facsimile: 929.777.8248
larry.schwarztol@protectdemocracy.org

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Jessica Marsden
PROTECT DEMOCRACY PROJECT,
INC.
510 Meadowmont Village Circle, No. 328
Chapel Hill, North Carolina 27510
Telephone: 202.672.4812
Facsimile: 929.777.8428
jess.marsden@protectdemocracy.org
Jamila Benkato
PROTECT DEMOCRACY PROJECT,
INC.
2020 Pennsylvania Avenue, NW, Suite #163
Washington, D.C. 20006
Telephone: 202.856.9191
Facsimile: 929.777.8428
jamila.benkato@protectdemocracy.org
David S. Frankel
Harry P. Morgenthau
KRAMER LEVIN NAFTALIS &
FRANKEL LLP
1177 Avenue of the Americas
New York, New York 10036
Telephone: 212.715.9100
Facsimile: 212.715.8000
dfrankel@kramerlevin.com
hmorgenthau@kramerlevin.com
Counsel for Plaintiffs-Appellants

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CERTIFICATE OF COMPLIANCE
In accordance with Rule 32(a)(7)(B) of the Federal Rules of Appellate
Procedure, the undersigned counsel for Plaintiffs-Appellants certifies that the
accompanying brief is printed in a proportionally spaced Times New Roman
typeface, 14-point, and that the text of the brief comprises 6,328 words according to
the word count provided by Microsoft Word, excluding the parts of the document
excepted by Fed. R. Civ. P. 32(f).
/s/ Laurence M. Schwartztol
Laurence M. Schwartztol
PROTECT DEMOCRACY PROJECT,
INC.
125 Walnut Street, Suite 202
Watertown, Massachusetts 02472
Telephone: 202.945.2092
Facsimile: 929.777.8248
larry.schwarztol@protectdemocracy.org

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CERTIFICATE OF SERVICE
I certify that on May 28, 2019, the foregoing document was served on all
parties or their counsel of record through the CM/ECF system.

/s/ Laurence M. Schwartztol
Laurence M. Schwartztol
PROTECT DEMOCRACY PROJECT,
INC.
125 Walnut Street, Suite 202
Watertown, Massachusetts 02472
Telephone: 202.945.2092
Facsimile: 929.777.8248
larry.schwarztol@protectdemocracy.org

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